• Partition suit

My father was the plaintiff in partition suit against my uncle(defendants). In that case the schedule of property was 20 khattas in the described plaint. But the 4 kattas was sold jointly by my father and uncle before 17 years from earlier of partition suit.so the physically total property is 16 kattas. But that was not mentioned in that case. Similarly the defendant did not arise this issue as he had the knowledge of sale.......during the pendency of the suit both of my father and uncle passed away.after that me and my cousin are substitute plaintiffs and defendant respectively. I also mistakely not mentioned the sale details in that case..repeatedly the next deffendent does not arise this issue because he has also fully knowledge of the sale........after all of this I got expartee preliminary decree over 20 katthas and got appointment of advocate commissioner on contest........ But physically the property is now 16 katthas .........------------------ Now is there any problem 1) to make advocate commissioner report? 2) can deffendent artise this question now regarding of sale? 3) can my case may be dismissed in this sale issue??? ........pls help me
Asked 7 years ago in Civil Law

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4 Answers

1) if 4 khattas of land was sold by your father and uncle then in the partition suit partition should have been claimed for only 16 khattas

2) draw attention of the court to fact that preliminary decree should have been passed for only 16 khattas and not 20 khattas

3) advocate commisisoner report would reveal that only 16 khattas of land are available for partition

4) defendants can raise the question regarding sale

5) your case would not be dismissed but partition would be granted for only 16 khattas

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

1. Apply for change of preliminary decree on amendment of plaint so as to change the area of land.

2.Yes defendant can raise this issue but since his father also part of so he can do nothing.

3. No.You can ask the advocate commissioner to partition only the area which is fet after sale and make a reference in his report of the earlier sale. It would be convenient for both of you.

Devajyoti Barman
Advocate, Kolkata
22917 Answers
497 Consultations

5.0 on 5.0

Advocate commissioner will take into consideration all facts while dividing property by metes and bounds

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

But physically the property is now 16 katthas .........------------------ Now is there any problem 1) to make advocate commissioner report? 2) can deffendent artise this question now regarding of sale? 3) can my case may be dismissed in this sale issue??? .

Now after the inspection of property by Advocate commissioner it has been found that only 16 kattahs of properties are available and if there has been any objection raised to this by the defendants, you may file an amendment petition seeking to amend the schedule of properties stating that this omission was due to over sight.

The court will allow you to amend the same.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

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